"I hold that every American citizen has a right to form an opinion of the constitution, and to propagate that opinion, and to use all honorable means to make his opinion the prevailing one." --Frederick Douglass

Thursday, March 27, 2008

Brown, consolidated

Next time you're with a group of reasonably intelligent people--friends, family, co-workers--you might want to ask them who the attorney was for the Brown family of Topeka in the famous school segregation case. I'll bet somebody says it was Thurgood Marshall.

Now take a look at the heading of the U.S. District Court's opinion in Brown v. Board of Education, 98 F. Supp. 797 (Kan. 1951); this was nearly three full years before the Supreme Court issued its ruling on the appeal:

Notice a name missing from the list of counsel for the plaintiffs (the Browns) that you thought might be there?

Actually, Marshall was not the attorney for the Browns, whose primary NAACP counsel was Robert Carter. Marshall worked chiefly as counsel for the plaintiffs in Briggs v. Elliott, 98 F. Supp. 529 (E.D.S.C. 1951), a similar school segregation case from South Carolina (see Kluger, Simple Justice, 2004, p. 397 and Rowan, Dream Makers, Dream Breakers: the World of Justice Thurgood Marshall, 1993, p. 190. Marshall is better remembered because, as Rowan notes, he was the "cleanup man" in oral argument when Brown, Briggs, and three other cases came before the Supreme Court. Of course, Thurgood Marshall also became a household name because he went on to serve on the Supreme Court himself.

I thought about misconceptions involving Brown v. Board of Education when I looked at the website of the Brown Foundation, which I've linked above. This organization describes itself on its home page in this fashion: "The Brown Foundation for Educational Equity, Excellence and Research was established in 1988 as a living tribute to the attorneys and plaintiffs in the landmark U.S. Supreme Court decision of 1954 Brown v. Board of Education." Their site has some good resources on the case--but also one glaring error that I'm surprised to see. Here is their page on "myths and truths" about Brown:

"Delaware" is misspelled once, but that's not the mistake I'm talking about. Take a look at the very first sentence of the unanimous opinion delivered by Chief Justice Earl Warren in the case:

"These cases come to us from the States of Kansas, South Carolina, Virginia, and Delaware." 347 U.S. 483, 486 (1954).

Again, is something missing? Right, that's only four cases "combined under the heading" of the Brown opinion. The fifth case, Bolling v. Sharpe, was not combined with the others; it has its own opinion immediately following Brown in the U.S. Reports (347 U.S. 497).

Why the separation? Because Bolling involved school segregation in the District of Columbia. That meant that its holding could not be based on the Equal Protection clause of the Fourteenth Amendment, as this applies only to the states. Schools in Washington, D.C. were maintained by the federal government, so to reach the same result as it did in Brown, the Supreme Court had to write a separate opinion basing its decision on the Due Process clause of the Fifth Amendment, a Constitutional provision which does apply to the federal government. (This is discussed in brief in Bernard Schwartz's A History of the Supreme Court, 1993, pp. 300-301.)

The National Park Service, on its website for the Brown v. Board of Education National Historic Site, repeats this error, which isn't surprising since they acknowledge that they obtained the information from the Brown Foundation:

Well, at least they spelled Delaware correctly. But this stands to me as another shining example of why one must be careful with information obtained on the Internet--as well as a demonstration of why I try here to cite my sources. Intuitively, one would think a foundation named after the Brown case and the park service administering a historic site commemorating the case would present the information correctly and tell you that there were five school segregation cases, that four were lumped together, and that the other one had a separate opinion. Instead, they expressly say all five cases were "combined... under the heading of Brown v. Board of Education ."

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